Regulator censoring porn to keep itself in a job, says campaigner

ATVOD, the regulator that has just called for changes to UK law
to stop children accessing pornography online, is merely trying to
justify its existence and make more money, says campaigner Jerry
Barnett.

Barnett, founder of Sex and Censorship, says he has seen the CEO
at the media regulator's helm, Peter Johnson, wage this battle for
years. It is the same battle, he adds, that saw the British
Board of Film Classification (BBFC) -- a private
organisation Johnson used to work for -- gain statutory powers to
censor videos 30 years ago. And this latest move is yet another
attempt at propagating a "culture in the UK of banning pornography"
that sees hardcore material banned from television to this day.

"ATVOD is lobbying for laws that will empower them and
stop them being irrelevant"

Jerry Barnett, Sex &
Censorship

"I know ATVOD very well and it is first and foremost a money
making venture," Barnett told Wired.co.uk. "It's quite a clever
setup that has tax rating powers to regulate video on demand and
they've decided to extend the definition of that far beyond other
European countries. Its job should be to look at TV-on-demand
services, like 4OD, but ATVOD has decided to massively stretch the
definition to cover any site with video on."

It seems ATVOD has been gradually edging that definition for
several years. In 2010 it was permitted to share, with Ofcom, the
regulation of UK video on-demand services and was tasked with
ensuring providers follow its editorial regulations. This includes
ensuring providers make the appropriate fee payment. Their powers
come from Section 368A of the Communication Act 2003, which defines
a relevant service thus: "its principal purpose is the provision of
programmes, the form and content of which are comparable to the
form and content of programmes normally included in television
programme services." Essentially understood as, "TV-like".

But ATVOD has one other main power. To enforce breaches of its
editorial regulations, which include hate speech, and controls on
content viewed by under 18s. It is hugely relevant, however, that
there is not mention of "adult content" or pornography in the
section of the Communications Act that gives ATVOD these powers. That law points to"material which might seriously impair the
physical, mental or moral development of persons under the age of
eighteen" -- something most people would agree differs vastly
according to an individual's age and experience. ATVOD, however,
wants to be able to stop all payments leaving the UK if the sites
they are heading for do not employ age verification. There has
never been a consultation into what constitutes an impairment under
the Act for specific sites, and there will no doubt be none if the
vast number of sites based overseas become subject to new UK
regulations. Johnson, however, says ATVOD wants to "cut of the
flow of funds, because without it it wouldn't exist". The regulator
just needs to give providers an incentive "to behave
responsibly".

"They bring in about half a million a year," says Barnett.
"ATVOD is concerned it has no actual power -- so it's trying to
regulate the internet and it can't." If the proposals it has put to
the government go ahead though, and changes are made to the law to
clarify the definition of material designed to "corrupt" under the
Obscenity Act or ATVOD's existing powers under the Communication
Act are altered, that could all change.

The calls being made by ATVOD today, are not related to UK
content, of which there is little. It can already block content that doesn't comply with its regulations here. It
wants to access the huge amount of material that makes up the
majority of online porn -- material hosted abroad it has been
unable to reach until now.

"ATVOD has turned itself into lobbying organisation," says
Barnett. "It's lobbying for laws that will empower them and stop
them being irrelevant, to put it bluntly. It has already chased UK
companies."

"ATVOD is trying to raise its profile -- otherwise
sooner or later someone will notice they don't do anything"

Jerry
Barnett, Sex & Censorship

A report by the government's Culture, Media and Sport Committee
released on the 19 March focussed on child internet safety
and made recommendations almost identical to the ones ATVOD has now
demanded. It called for credit card verifications, and blocks for
those that don't comply. Combined with the overwhelming
anti-pornography rhetoric coming from within David Cameron's own party, and from the manhimself,
there is basis in the argument that these increasing controls,
verging on censorship, are down to a British culture -- or at
least, an ideal of its culture.

"Johnson is trying to repeat the trick the BBFC pulled 30 years
ago," said Barnett. "There is a culture in the UK of banning
pornography. It's still banned on TV to this day. Ofcom has decided
it's banned. It was banned on video and DVD until 2000. And it's an
unelected body that made that decision. It was not until it was
legally challenged in 2000 that hardcore pornography was allowed on
DVD, and it's still a tame version."

"There is an anti-porn moral agenda going on. And by and large
ATVOD is trying to raise its profile. The measures don't seem to
make a huge amount of sense, but otherwise sooner or later someone
will notice they don't do anything."

Johnson tells Wired.co.uk that one of the reasons behind ATVOD's
proposal is in fact a need to categorise online content in such a
way that it is aligned with BBFC's own definition of content that
is deemed harmful to under-18s. Its report found that 23 out of the
top 25 pornographic websites in the UK featured material deemed
hardcore, which would fall into an R18 category. "This includes
explicit images of real sex, often group sex," says Johnson. "Some
of the material on these sites you couldn't even sell in a licensed
sex shop." When Wired.co.uk enquired as to what this might include,
Johnson said urolagnia.

For the uninitiated, this is a fetish whereby the thought or
sight of someone urinating is sexually arousing, most often
portrayed as someone urinating on another person. Wired.co.uk, for
its part, would not consider this to be on the same hardcore level
as quite a lot of material, and wondered what the legal
justification might be for actually banning the sale (or rental) of
this material. According to Johnson the BBFC takes the basis of its
rulings from British case law related to the Obscenity Act, which
covers material that depraves and corrupts. If a totally new law is
introduced, whether as an adaptation to the Obscenity Act, the
Communications Act or a standalone law, it would clear up any
confusion, says Johnson.

Barnett conversely argues that education should be the answer to
preventing young children from watching pornography, or at least
providing them with a balanced view of it if they have already
accessed it. But he believes the Conservative government has rolled
this back.

It's also key that some of the figures ATVOD points to in its
latest survey, designed to justify a change to UK law, relate to
over 15s. 200,000, or six percent of children aged between 6 and 15
viewed online pornography in December -- in the report there is no
mention of whether that material is hardcore or how it was deemed
to have the potential to "impair the physical, mental or moral
development of persons under the age of eighteen". Up to 18 that
figures includes 473,000 "children". These are of course, however,
young adults that are allowed to drive, get married, sign up for
the army, pay tax and, perhaps most importantly, have as much sex
as they choose to.

"We would argue there is a difference between having sex with
another human being and watching hardcore pornography," Johnson
tells Wired.co.uk. "Parliament has set the legislation that has set
the age limit of this material at 18 under the Video Recordings
Act, so society through parliament has decided such material is
grossly inappropriate at best for under 18s. The law we impose
doesn't give us an option to restrict things for just under-16s."
Johnson also pointed to evidence by some that the brain is still
developing in the teenage years, and therefore is "susceptible to
becoming set in ways you wouldn't want it to become set".

"The government doesn't think we should be looking at porn until
18," said Barnett. "I have a small child and will do my best to
make sure they don't see porn at a young age. But all bets are off
as teenager, if he has not been educated."

The system ATVOD is proposing, whereby payment providers have a
legal basis to deny payment to any website that does not conform
with ATVOD regulations, even if it lies outside of UK jurisdiction,
has also been called into question. Ian Walden, a solicitor and
professor of information and communications law says such a system
would essentially require a giant blacklist of sites, similar to
the one the Internet Watch Foundation uses to monitor and block
sites hosting child abuse content.

"That filtering system is highly controversial and complex to
operate," said Walden, who was a Board Member and Trustee of the
Internet Watch Foundation up until 2009. "The idea of ATVOD
producing a list of sites around the world… once a payment provider
is given that list what do they do with it? They won't know a
payment has been levied. They'll need to know in real time whether
their customers is based in the UK and is trying to access that
particular site."

Johnson argues payment providers already do the same thing for
gambling sites -- the companies just need the legal basis upon
which to carry out the blocks. "It's what they do already with
websites operating illegally -- websites selling mail order cocaine
they find out have managed to setup a visa account, for instance.
They'd shut that account. They do that all the time."

Walden agreed that there does seem to be a move being made here
by ATVOD to massively overstretch its brief. "ATVOD is an
organisation that doesn't have a lot of remit. It has very narrow
powers and is trying essentially to extend that remit."

However, for his part, Johnson completely contests Barnett's
assertion that ATVOD's report has been motivated by money or power.
The body is simply fulfilling its duty, according to the remit set
out in the Communications Act.

"We haven't called for ourselves to be given any more powers at
all," says Johnson. "All we're interested in is protecting
children." He argues the government could appoint whomever it
chooses to oversea the regulations or presumably collect the
appropriate fees, ATVOD simply believes "there should be a
licensing regime".

"We're not pitching for new work -- I don't actually get up in
the morning and think about money, whatever Barnett thinks. I get
up in the morning and think about protecting consumers."

When Wired.co.uk asks why then ATVOD took the time and effort to
create the report, Johnson explained: "we regulate in the UK and
these companies are in direct competition with the ones set outside
the UK and as a regulator charged with protecting children from
pornographic websites. We can't in all conscience ignore what's
coming in from the outside. We spent a small amount of our research
budget and a bit of my time talking to media today. But we have the
data and experience so wanted to make a contribution round this
debate."